The First Amendment and specialty license plates: the "Choose Life" controversy.

• Author: Bell, Stephanie S.

1. INTRODUCTION

   Specialty license plate programs, specifically the "Choose Life" specialty license plate, have been and continue to be the subject of much controversy. For those in the pro-life community, the stakes are high. In Florida, as of February 29, 2008, the "Choose Life" specialty license plate has raised over five and a half million dollars for organizations that help women who are committed to adoption. (1) For those on both sides of the debate, the "Choose Life" controversy is shaping the way the judicial system defines government and private speech. Therefore, this controversy has serious implications for First Amendment rights.

   The government speech doctrine, concerning speech by the government that is not required to be viewpoint neutral, is a fairly recent concept. (2) As cooperation between government and private parties continues to increase, the distinction between government and private speech becomes even more important. When demarcation between government and private speech is unclear, the government argues that a certain message is government speech because the message is literally printed on government property (e.g., specialty license plates) or part of a specific government program (e.g., family planning under Title X of the Public Health Service Act at issue in Rust). (3) But to some extent, the property itself is simply a vehicle for individuals to express private speech (such as "Choose Life" supporters wanting to put their message on specialty license plates), and the program might involve administration by private parties (such as the doctors subsidized by family planning funds in Rust). (4) If a specialty license plate is considered government speech, then viewpoint neutrality is not required. Further, expanding the government speech doctrine may chill private citizens' free speech rights. Alternatively, if a specialty license plate is deemed private speech, it may gloss over any compelling state interest the government has in crafting its own message.

   This summary will examine the models of specialty license plate creation, the history of "Choose Life" specialty license plates, the litigation surrounding the controversy, and the two differing standards courts have used to distinguish government and private speech: the Fourth Circuit's four-factor test and the Johanns test.

   In its "four-factor" test, the Fourth Circuit looks to the following factors to distinguish between government and private speech: (1) the central "purpose" of the program in which the speech in question occurs; (2) the degree of "editorial control" exercised by the government or private entities over the content of the speech; (3) the identity of the "literal speaker;" and (4) whether the government or the private entity bears the "ultimate responsibility" for the content of the speech. (5) The Sixth Circuit has declined to apply the four-factor test and instead has applied the test from Johanns--whether "the government sets the overall message to be communicated and approves every word that is disseminated" (6)--to distinguish government from private speech. (7)

   Recently, the Ninth Circuit (8) and several federal district courts (9) have adopted the four-factor test of the Fourth Circuit instead of the Sixth Circuit's Johanns test. However, the Sixth Circuit's decision to use the Johanns test over the four-factor test is evidence that there is a split among the circuits regarding which test is most appropriate when applied to the controversy surrounding specialty license plates.

   Currently, there is pending litigation in three states, (10) while in fifteen other states pro-life groups are working toward obtaining a "Choose Life" specialty license plate. (11) Moreover, debate continues to surround the issue of specialty license plates outside of the "Choose Life" controversy. (12) Since there is currently a split of authority between the circuits, and because the United States Supreme Court has denied certiorari on the issue five times, (13) the specialty license plate controversy will only escalate over the coming years.

2. LEGAL BACKGROUND

   1. Models of Specialty License Plate Creation

      There are three models of specialty license plate creation in which individuals or organizations are able to receive and display their own specialty license plates. (14) The three models of specialty license plate creation are the administrative model, the legislative model, and a hybrid model.

      1. Administrative Model

         In the administrative model of specialty license plate creation, a state legislature enacts a specialty license plate statute which defines the process by which organizations may apply for specialty plates and designates an agency to review such applications. Montana, for example, has a purely administrative model of specialty license plate creation. Under the Montana Generic Specialty License Plate Act, (15) the Department of Motor Vehicles is charged with designing the background and general format of the specialty license plate, determining the most efficient and versatile manufacturing method of specialty license plates, and plate numbering. (16) The Department must also adopt rules specifying the minimum and maximum number of characters a specialty license plate may contain, the general placement of a sponsor's name, message, and graphic, and any other limitations on the choice of color or detail of the graphic. (17) Additionally, the sponsor name, message, and graphic must be approved by the Department. (18) A governmental body (19) or organization (20) may qualify as a sponsor under the Act if the entity meets certain requirements. (21) Once the specialty plate is created, the Department of Motor Vehicles must issue a set of generic specialty license plates to an individual who applies and pays both an administrative fee (22) and "the donation fee established by the plate sponsor." (23)

      2. Legislative Model

         In contrast to the administrative model, the legislative model of specialty license plate creation involves legislatures enacting statutory provisions that create individual specialty license plates. (24) A senator or representative sponsors a bill detailing who may apply, the design, additional fees, and any limitations (i.e. on transferability).25 For example, in 2007 in Tennessee, two legislators introduced a bill to create a specialty license plate benefiting the Tennessee Equality Project Foundation, an organization that promotes education and dialogue on issues related to equality for gay, lesbian, bisexual, and transgender persons in Tennessee. (26) Although several specialty license plates can be created through the enactment of a single piece of legislation, Tennessee's statutes make clear that no specialty license plate may be created without specific legislative authorization. (27) Tennessee has a purely legislative model of specialty license plate creation. (28) Currently, in Tennessee the legislature has enacted over sixty-five statutory subsections to allow the issuance of individual specialty license plates. (29)

      3. Hybrid Model

         Finally, some states have instituted a hybrid administrative and legislative model for specialty license plate creation--such is the case with Missouri. (30) Missouri has two distinct procedures for obtaining a specialty license plate. (31) First, similar to the legislative model of specialty license plate creation, the Missouri legislature can pass a bill that creates a specialty license plate. (32) The Missouri legislature has created approximately seventy license plates through this model, including: "Knights of Columbus," "Harmony--Grand Eastern Star," "Prince Hall--Missouri & Jurisdiction--Free & Accepted Masons," "Shriners Help Kids" and "NAACP" plates. (33) The second procedure reflects the administrative model for specialty plate creation. Private organizations can apply to the Missouri Department of Revenue, and the department then submits the application to the Joint Committee on Transportation for approval. (34) After committee approval, the proposed art design is submitted, and the plate must be issued within one year. (35)

         In Missouri, the two models of specialty plate creation serve as two separate tracks for an organization to obtain a specialty plate. Nothing limits an organization from pursuing both tracks simultaneously or choosing to pursue only one. With a legislative model, an organization would have to find a member of the General Assembly to sponsor the legislation, seek support from a majority of the members of the General Assembly, and ensure that the piece of legislation reaches the decision agenda. An applicant wishing to seek a specialty plate in Missouri under the administrative model would have to submit a petition including a list of two hundred potential purchasers and an application fee to the Department of Revenue, and then seek approval from the Joint Committee on Transportation Oversight. (36) An organization might find one of these tracks more feasible than another and therefore may choose to only pursue one for the purpose of specialty license plate creation.

         Florida is another example of a state that has neither a purely legislative nor purely administrative model of specialty plate creation. (37) Rather than having two separate tracks, where organizations can choose either an administrative track or a legislative track, the model is both administrative and legislative. (38) Under Florida's original specialty license plate creation statute, an applicant must submit a petition with signatures of potential purposes, an application fee, and a marketing strategy plan on forms provided by the department. (39) This information is submitted to the legislature for their approval. (40) If approved, the applicant then must submit a proposed design for the specialty license plate to the department. (41) If the legislature does not approve the application, the application fee is refunded to the organization. (42)

   2. History...